Flodin v. United States

• Decision Date: 11 June 2015
• Docket Number: 13-cv-853-bbc
• Citation: Flodin v. United States, 13-cv-853-bbc (W.D. Wis. Jun 11, 2015)
• Court: U.S. District Court — Western District of Wisconsin
• Parties: DANIEL FLODIN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

DANIEL FLODIN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

13-cv-853-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

June 11, 2015

OPINION AND ORDER

In April 2010, Glenwood Flodin tripped and fell after he used the restroom at a medical clinic for veterans.PlaintiffDaniel Flodin is the son of Glenwood Flodin and the administrator for the estate of Glenwood, who died in June 2010.In this lawsuit brought under the Federal Tort Claims Act, plaintiff alleges that his father fell because of an upturned rug outside the bathroom.Plaintiff contends that the government may be held liable under Wisconsin's Safe Place statute, Wis. Stat. § 101.11, because the accident occurred at a "place of employment" and a "public building" that the government owns.In addition, plaintiff contends that the government is negligent for failing to prevent the accident.In particular, plaintiff says that defendant should have: (1) implemented an "active safety program"; (2) monitored the rugs to make sure they were not upturned throughout the day; and (3) used a rug with adhesive on the back and that had a heavier rubber backing.

Two motions are before the court.First, the government has filed a motion forsummary judgment on both of plaintiff's claims.In addition, the government has filed a motion to exclude the testimony of Ronald Pember for various reasons, along with a request for sanctions.For the reasons explained below, I am granting the government's summary judgment motion with respect to the claim under the Safe Place statute, but I am denying the motion as to the negligence claim.In addition, I am denying as premature the motion to exclude Pember's testimony.

OPINION

A.Safe Place Statute

Under Wis. Stat. § 101.11, owners and employers of a "place of employment" and owners of a "public building" have heightened duties to prevent accidents from occurring on their property.Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 20, 291 Wis. 2d 132, 146, 715 N.W.2d 598, 605(Safe Place statute"provides a higher duty than the duty of ordinary care regarding certain acts by employers and owners of places of employment or public buildings.").The government argues that it cannot be held liable under the statute either as an employer or as an owner of a public building.First, it says that the clinic where the accident occurred does not qualify as a "place of employment."In addition, although the government concedes that the clinic is a public building that is owned by the United States, the government argues that owners of public buildings do not have responsibility for keeping a rug safe.I will consider both arguments in turn.

1.Place of employment

Under Wis. Stat. § 101.11(1), a "place of employment" is "every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade, or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade, or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit."In this case, the parties dispute whether the clinic is a place where "any person is, directly or indirectly, employed by another for direct or indirect gain or profit."Wisconsin courts have construed that portion of the statute as requiring a showing that the structure where the accident occurred is "used for a profit making enterprise."Ruppa v. American States Insurance Co., 91 Wis. 2d 628, 639, 284 N.W.2d 318, 322(1979).See alsoVoeltzke v. Kenosha Memorial Hospital, Inc., 45 Wis. 2d 271, 278, 172 N.W.2d 673, 676(1969)("The critical factor here, place of employment, is dependent on the profit motive of the defendant.");Haerter v. West Allis, 23 Wis. 2d 567, 570, 127 N.W.2d 768, 770(1964)("In the absence of a showing of the profit motive on the part of the city, the city will not be held to the higher standard of care required by the safe-place law.");Kelbley v. Tower Insurance Co., 1989 WL 154395, *3, 152 Wis. 2d 772, 450 N.W.2d 254(Ct. App.1989)(unpublished)("'[P]lace of employment' requires the employment be for 'gain or profit.'The profit motive refers to that of the employer, not that of the employee.");Schmorrow v. Sentry Insurance Co., 138 Wis. 2d 31, 42, 405 N.W.2d 672, 677(Ct. App.1987)("profit motive" is the "critical factor").

As I noted in Ribarich v. United States, No. 14-cv-735-bbc, 2015 WL 1321661, at *3(W.D. Wis.Mar. 24, 2015), some Wisconsin authority suggests that governmental organizations are categorically exempt from the provision of the Safe Place statute governing places of employment.Ruppa, 91 Wis. 2d at 639, 284 N.W.2d at 322("Institutions operated by nonprofit or governmental organizations are not places of employment.");Presser v. Siesel Construction Co., 19 Wis. 2d 54, 64, 119 N.W.2d 405, 411(1963)(construction site was not place of employment because it was "under the sole control of the government").However, in other cases, the Wisconsin Supreme Court has stated that some publicly-owned entities may be held liable under the Safe Place statute and that courts should conduct an individualized inquiry to determine whether the intent of a particular organization is to make a profit.Leitner v. Milwaukee County, 94 Wis.2d 186, 191, 287 N.W.2d 803, 805(1980)("Because the premises are owned by a county does not, ipso facto, mean that they are not a place of employment.").The parties in this case assume that an individualized inquiry is necessary, so I will do the same.

In arguing that the clinic is not run with a profit motive, the government cites 38 U.S.C. § 1729A, which, as plaintiff admits, "require[s] that amounts collected by VA hospitals be used to furnish medical care to veterans."Plt.'s Br., dkt. #22, at 4.However, plaintiff says that § 1729A does not show whether the clinic "actually operates for direct or indirect profit or gain."Id.Rather, "[t]he statute goes to how any 'profits'—monies collected in excess of expenditures—are spent."Id.

As plaintiff himself acknowledges elsewhere in his brief, whether the clinic "actually"makes a profit is not the relevant question.Haerter, 23 Wis. 2d at 570, 127 N.W.2d at 770("The existence or non-existence of an actual profit, of course, is not material.").Rather, the question is whether the government has a profit motive.In this case, all the money that the government makes at the clinic must be used to provide medical care or pay expenses of the Department of Veterans Affairs.38 U.S.C. § 1729A(c)(1).Thus, Congress has established as a matter of law that the purpose of the clinic is to provide services to veterans, not to make money.Cf.Ribarich, 2015 WL 1321661, at *4(relying onstatute to find as matter of law that post office is not run with profit motive).

Even if I assume that § 1729A is not dispositive, plaintiff could not prevail on this claim.Plaintiff agues that the government "has put absolutely no facts into evidence as to the Twin Ports VA Clinic's motive,"Plt.'s Br, dkt. #22, at 4, but it is plaintiff's burden to prove his claim, not defendant's burden to disprove it.Modrowski v. Pigatto, 712 F.3d 1166, 1169(7th Cir.2013);Marion v. Radtke, 641 F.3d 874, 876-77(7th Cir.2011).The only reason plaintiff offers to infer a profit motive is that "[n]ot all services offered by the VA are rendered free of charge and the VA renders services in exchange for valuable consideration."Id. at 5(citing38 U.S.C. Pt. II.Ch. 11).However, many nonprofit organizations charge for some of their services.This shows only that they have an interest in sustaining themselves, not that they have a profit motive.Waldman v. Young Men's Christian Association, 227 Wis. 43, 277 N.W. 632(1938)("It is quite immaterial that fees are charged to cover a portion of the charitable purposes of the organization.").Again, because the money the clinic makes must be used to provide services or pay expenses, theexistence of fees is not probative of a profit motive.Voeltzke, 45 Wis. 2d at 280-81, 172 N.W.2d at 678("The fact that the hospital organized as a nonprofit corporation did . . . operate so as to have earnings in excess of its expenditures 'which it plows back into the business and into an expansion of its facilities' does not in our opinion make it a business employing others for direct or indirect profit or gain, nor make it an employer maintaining a place of employment within the meaning of the safe-place statute.").Accordingly, I agree with the government that the clinic is not a "place of employment" under the Safe Place statute.

2.Owner of a public building

In interpreting the Safe Place statute, Wisconsin courts have held that the duty of an owner of a public building is more limited than an owner or employer of a place of employment.In particular, "[a]n owner of a public building is liable only for injury resulting from structural defects and unsafe conditions associated with structure."Ruppa, 91 Wis. 2d at 640, 284 N.W.2d at 322.See alsoRosario v. Acuity & Oliver Adjustment Co., 2007 WI App 194, ¶ 11, 304 Wis. 2d 713, 722, 738 N.W.2d 608, 612;Niedfelt v. Joint School District No. 1 of City of Viroqua, 23 Wis. 2d 641, 647, 127 N.W.2d (1964).A "structural defect" is "a hazardous condition inherent in the structure by reason of its design or construction."Barry v. Employers Mutual Casualty Co., 2001 WI 101, ¶ 28, 245 Wis. 2d 560, 573-74, 630 N.W.2d 517, 523-24.An "unsafe condition associated with the structure" is a "hazard[][that] arose from the failure to keep an originally safe structure inproper repair or properly maintained."Id.at ¶ 27.

In this case, the parties debate whether the turned-up rug plaintiff says his father slipped on was an "unsafe condition associated with structure."Plaintiff says that it was because the floor of the clinic is part of the structure and the rug...